PAREXEL INTERNATIONAL, LLC, 356 NLRB No. 82 (2011)

The animation is based loosely on the facts of Parexel International.  Some changes were necessary to make it concise. 

Another interesting PCA case.  Here is my summary (I skip a large procedural issue):

South African employees seemed to be getting better treatment (and pay) than other employees.  One nurse talked to a South African employee about his preferable treatment and later raised the issue with her supervisor.  A manager, an HR consultant, and the nurse had a meeting to discuss the source of a rumor that South African employees were being treated better than native born Americans.  The nurse told the manager and HR consultant that she had not discussed or complained to any regular employees about the issue, but had only complained to her supervisor about it.  Some days later the employee was fired.

The General Counsel alleged that the nurse had engaged in protected, concerted activity and had been unlawfully discharged for that activity.  The judge found that the nurse had been discharged for those conversations, and that the discharge had been in part a "preemptive strike" designed to stymie similar complaints among other employees.  However, the judge found that while the nurse's complaints were of a protected nature, she had not engaged in any concerted activity.  Because the nurse had not engaged in protected concerted activity, he recommended dismissal of the allegation.

However, in a 2-1 decision, the Board reversed and ordered the reinstatement of the discharged nurse.  Whether or not the nurse had engaged in PCA, the Board ruled that a termination designed to nip-in-the-bud employee complaints about wage discrepancies was unlawfully motivated and would restrain/coerce employees in the exercise of their Section 7 rights.  On page 4, the Board writes,

"That conclusion is supported not only by the plain text of Section 8(a)(1), by the policies underlying Sections 7 and 8(a)(1), and by the authorities cited, but it is consistent with other lines of Board precedent holding that, under certain circumstances, employees who have engaged in no concerted activity at all are protected from adverse action. For example, an adverse action taken against an employee based on the employer’s belief that the employee engaged in protected concerted activity is unlawful even if the belief was mistaken and the employee did not in fact engage in such activity. [Foot note omitted]. Similarly, a mass discharge undertaken without concern for whether individual employees were engaged in concerted activity—where “some white sheep suffer along with the black”—violates the Act.[Foot note omitted] . What is critical in those cases is not what the employee did, but rather the employer’s intent to suppress protected concerted activity."


Full decision here.

What's Different about NFL Contract Talks in 2011?

The threat of a lockout in the NFL still seems to be an imminent possibility.  As that the possibility draws closer, both the owners and the NFL Players Association are making efforts to win the support of fans to their respective side of the dispute.  The battle for the support of the fans who are the driving engine of the business is nothing new to NFL contract negotiations. But what is new or different about the battle for the hearts and minds of the fans this year?


Online Campaign and Use of Social Media
In a New York Times article, "In N.F.L. Labor Fight, Battlefield Moves Online," Richard Sandomir reports that, "the two sides are jabbing, countering and needling each other on Twitter, Facebook and on Web sites devoted entirely to the possible lockout. Their online dueling is designed, in part, to woo fans to their corners."  When the last agreement was reached in 2006, Facebook was still a college campus fad, and Twitter was just being born.  The cyber-landscape has shifted since then.
  
Fantasy Football 
 Fantasy football is of course not a brand new new thing, and certainly was quite popular the last time the parties negotiated.  But fantasy football continues to be a growing pastime and business and its impact surely only grows stronger.  From Wikipedia:
"The explosive popularity of fantasy sports, coupled with the availability of venues showcasing numerous live football games via satellite, has had significant effects on football viewing and rooting habits among participants. Fantasy sports players watch more game telecasts, buy more tickets and spend money at stadiums at a much higher rate than general sports fans...The NFL entered into a reported five-year, $600 million deal in 2006 with Sprint that was driven at least in part because of fantasy sports, allowing subscribers to draft and monitor their teams with their cellphones."

But how should fantasy football impact fans' sympathy in labor disputes?  It could really cut both ways.  On the one hand, fantasy football players are actually fantasy football owners.  They draft players and make executive decisions about who will be on their teams.  By playing owners, will they be primed to empathize with ownership in the labor dispute?

On the other hand, fantasy football shifts the focus from teams to individual players.  From Wikipedia:

"Critics charge that rather than supporting a favorite team in any one game, some fantasy owners may instead support the players on their fantasy rosters."  Fantasy football owners know and care about the players of a vast number of teams.  They know about small details of the players' health and lives that might impact their perfomances such as minor cases of turf toe or a breakup with a girlfriend.  So, if playing fantasy football makes fantasy owners fans of players rather than fans of teams, that could drive their allegiance into the corners of the players.

Whichever side the fantasy owners come down on will be important. They watch more and spend more than the average fan and will likely be angrier than average at somebody when they can't watch their games.  Additionally they are a vocal group and will lead opinion among other fans.

Political Affiliation of the Fans
I don't have any historical data on this, and so I don't know if it represents a change, but a marketing study shows that NFL fans tend to be right of center politically and incidentally more likely to vote than average TV watchers.  Below is a fancy dot graph from that study.  Contracts run up in several pro sports this year.  Of those up for negotiations, you can see below that NBA fans are the most left leaning, MLB fans are slightly to the right of center, but less so than NFL fans, and NHL fans are further to the right than NFL fans. Of course leaning right generally means leaning away from support of organized labor.  Will the political leanings of the fan bases affect their support in contract negotiations?

Go to the League's website at http://www.nflplayers.com/about-us/2011-Lockout-Central/ or the player's website at http://www.nflplayers.com/about-us/2011-Lockout-Central/ to follow the story.

Wrong Tie

Randy Enochs over at Wisconsin Employment & Labor Law Blog posts about a Chicago area car salesman who was recently fired.  Salesman John Stone wore his Green Bay Packers tie on Monday after the Packers 21-14 playoff victory over the Bears.  His boss gave him the chance to either remove the tie or pack it up.  Stone chose to keep it on.  You've got to respect that kind of pride.  Maybe there will be a happy ending when some Green Bay car dealer picks him up for his heroism.  Randy Enochs writes that Stone has no cause of action for a wrongful discharge suit.  Enochs is probably right, but a certain group of Chicago Superfans  make me wonder if the guy has a religious discrimination suit.

SALON/SPA AT BORO, INC, 356 NLRB No. 69 (2010)

Sorry, no exciting Atlantic Steel moments, but this is an interesting protected concerted activity case.  It takes place in an environment not often seen in NLRB volumes: a salon.

A policy against negativity was the "philosophy and vision" of its owner who strove to retain guests by eliminating negative vibes.  The policy actually seemed to lead to more negativity as there were constant accusations that employees and supervisors were being Negative Nelly's.   Witch hunts to find out who was being negative ensued.  Ultimately, the policy and its application were found to be unlawful.  Not featured in my clip, the ALJ addressed a little bit of facebook policy, and so it's a must read for those looking for clues into the future analysis of the NLRB on social media.  Full decision here.

Hudgens v. Prosper Inc. --- P.3d ----, 2010 WL 4840470 (Utah), 31 IER Cases 999, 2010 UT 68

This case strikes me as one of those law school hypos that actually happened.*  It was Philip Miles's "case of the week" for the week of December 10, 2010. http://www.lawfficespace.com/2010/12/waterboarding-fake-mustaches-and-other.html

A sales manager known for drawing mustaches with permanent marker on the faces of employees who missed their sales goals as well as taking away their chairs and pacing the floor with a wooden paddle  has his sales crew hike into the nearby hills for a little motivational exercise...what could go wrong?

The manager (Christopherson) decided to waterboard a volunteer (Hudgens).  "Once on the hill, Mr. Christopherson ordered Mr. Hudgens to lie down, facing up, with his head pointed downhill. Mr. Christopherson ordered other team members to hold Mr. Hudgens down by his arms and legs. Mr. Christopherson then slowly poured water from a gallon jug over Mr. Hudgens’s mouth and nose so that he could not breathe[footnote omitted]. Mr. Hudgens struggled and tried to escape but, at Mr. Christopherson’s direction, the other team members held him down."

Christopherson told the staff that they should work as hard at sales as Hudgens had worked at breathing.

According to the Utah Supreme Court,

"Mr. Hudgens reported the incident to Prosper’s human resources department. Prosper took no action in response to the incident prior to the time that Mr. Hudgens quit working for Prosper. Mr. Hudgens quit working because the waterboarding incident caused him to suffer sleeplessness, anxiety, depression, and to feel sick to his stomach at work. Because of the distress caused by the incident, Mr. Hudgens has undergone psychological counseling and has suffered physical and emotional harm.

Approximately seven months after the incident, on January 15, 2008, Mr. Hudgens filed a complaint against Prosper and Mr. Christopherson asserting four causes of action. First, Mr. Hudgens alleged common law assault and battery against Prosper and Mr. Christopherson. Second, Mr. Hudgens alleged intentional infliction of emotional distress against Prosper and Mr. Christopherson. Third, Mr. Hudgens alleged Prosper and Mr. Christopherson had wrongfully terminated him from his position. Finally, Mr. Hudgens alleged that Mr. Christopherson had intentionally interfered with his contractual relationship with
Prosper."

The district court threw out the complaint for failure to state a claim and denied Hudgens's motion to amend.  The Supreme Court of Utah reversed.  Full decision here.



*The plaintiff's claims were dismissed at the summary judgment level for failure to state a claim, and so the Utah Supreme Court wrote its decision on the basis that the facts as alleged by the plaintiff were true; my summary also makes that assumption.